executory contract

ABI’s Industry Viewpoint Interview: Intellectual Property And Bankruptcy

Bob Eisenbach — Wed, 06 Jul 2022 14:12:14 +0000

I recently had the honor of talking with the American Bankruptcy Institute’s Editor-at-Large Bill Rochelle about the intersection of intellectual property and bankruptcy, as part of ABI’s Industry Viewpoints video series. Bill and I discussed issues ranging from the U.S. Supreme Court’s Tempnology decision involving trademark licenses, to Section 365(n) of the Bankruptcy Code…

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Throwing Shade At Sunbeam: Following Lubrizol And Not The Seventh Circuit, The First Circuit Leaves Another Trademark Licensee Rejected And Out Of Luck

Bob Eisenbach — Mon, 22 Jan 2018 16:09:50 +0000

The Tempnology Trademark Saga. When it comes to decisions on bankruptcy and trademark licenses, the In re Tempnology LLC bankruptcy case is the gift that keeps on giving. Before turning to the First Circuit’s decision, let’s set the stage with a brief review of the underlying facts, a few more highlights from the Bankruptcy Court’s original decision, and the BAP’s subsequent take on these…

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The Trend Of Protecting Trademark Licensees In Bankruptcy Continues: For The First Time A Court Extends Section 365(n) Protections To Trademark Licensees On Equitable Grounds

Bob Eisenbach — Mon, 10 Nov 2014 06:40:54 +0000

If you doubted it before, you can stop now. The trend of courts finding ways to protect trademark licensees from the harsh effects of losing their trademark license rights in bankruptcy is in full swing. The latest example comes in the Crumbs Bake Shop, Inc. Chapter 11 bankruptcy case in New Jersey. On October 31, 2014, Judge Michael B. Kaplan of the U.S. Bankruptcy Court for the District of New…

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Cooley GO: A Great New Resource For Entrepreneurs And Their Companies

Bob Eisenbach — Wed, 23 Jul 2014 19:59:19 +0000

Cooley GO Earlier this month, Cooley LLP launched Cooley GO, a terrific new resource center for entrepreneurs with businesses at all stages of the growth cycle. Cooley GO is a mobile-friendly microsite that provides a wide range of free legal and business content covering formation, financing, building a team, working with directors and advisors, intellectual property, M&A, IPOs and more.

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A New Way Of Looking At Termination On Bankruptcy Contract Clauses

Bob Eisenbach — Mon, 23 Jun 2014 14:57:56 +0000

Image Courtesy of NobMouse Ken Adams, Professor Adrian Walters, and I recently collaborated on an article about the ubiquitous “termination on bankruptcy” or ipso facto clauses in contracts. The article was just published by the American Bar Association’s Business Law Section in its online publication, Business Law Today. It’s titled “Termination-On-Bankruptcy Provisions: Some Proposed Language”…

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In A Reversal, Eighth Circuit Sitting En Banc Protects Trademark Licensee Whose Licensor Went Bankrupt

Bob Eisenbach — Mon, 16 Jun 2014 15:01:00 +0000

Image courtesy of Kazuhisa Otsubo Trademark Licenses At Risk. I have written a number of times on the blog about the impact of bankruptcy on trademark licenses, with a special focus on the risk that trademark licensees face if their licensors file bankruptcy. Trademark licensees have no protection under Section 365(n) of the Bankruptcy Code, and legislative efforts to give that protection have…

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Third Circuit Decision Suggests Another Way For Trademark Licensees To Protect Against License Rejection In Bankruptcy

Bob Eisenbach — Thu, 01 Jul 2010 03:38:33 +0000

Trademark licensees have long faced the serious risk of losing all license rights to a trademark if the licensor files bankruptcy and rejects the trademark license as an executory contract. However, a recent decision from the U.S. Court of Appeals for the Third Circuit in the In re: Exide Technologies case may give some trademark licensees new hope of retaining their license rights even in…

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Protecting IP Rights From A Licensor’s Bankruptcy: What You Need To Know About Section 365(n)

Bob Eisenbach — Fri, 31 Jul 2009 03:15:16 +0000

Many companies rely on in-bound licenses of intellectual property, especially those involving patents or trade secrets, and spend millions of dollars on research, development, and ultimately commercialization of drugs or products incorporating the licensed IP. With so much at stake, licensees frequently ask a critical question: Can our license rights be terminated if the licensor files…

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U.S. Supreme Court Shows Interest In Deciding Whether The Hypothetical Test Or The Actual Test Should Be Used To Determine If IP Licenses Can Be Assumed In Bankruptcy

Bob Eisenbach — Thu, 26 Mar 2009 04:36:38 +0000

It looks like the U.S. Supreme Court, or at least two of the Justices, is interested in deciding whether the "hypothetical test" or the "actual test" should be used in determining whether an intellectual property license can be assumed by a debtor in possession under Section 365(c)(1) of the Bankruptcy Code. That was the clear message from the somewhat unusual statement by Justice Kennedy…

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Latest Edition Of Bankruptcy Resource Now Available

Bob Eisenbach — Tue, 20 May 2008 15:43:09 +0000

The Spring 2008 edition of the Absolute Priority newsletter, published by the Cooley Godward Kronish LLP Bankruptcy & Restructuring group, of which I am a member, has just been released. The newsletter give updates on current developments in bankruptcies and workouts with the goal of keeping you "ahead of the curve" on these issues. Follow the links in this sentence to access a copy of the…

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